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Davis v. Gause

United States District Court, D. South Carolina, Florence Division

August 23, 2018

JAMES DAVIS, Plaintiff,
v.
CAROL GAUSE, JOHN GAUSE, and COLONIAL INN, INC., Defendants.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff, who is proceeding pro se, alleges that defendants discriminated against him and harassed him during his employment at Colonial Inn. Presently before the court is Defendants' Motion to Dismiss (ECF No. 31). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in dismissal of his Complaint. Plaintiff has not filed a response. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.

         II. RULE 41(b) DISMISSAL

         Defendants file their motion pursuant to Fed.R.Civ.P. 41(b) for Plaintiff's failure to respond to their discovery requests and to appear for his deposition. Counsel for Defendants asserts that he made contact with Plaintiff via telephone conference and scheduled a meeting to discuss the issues of the case for April 11, 2018. Buyck Aff. ¶ 3 (Ex to Def. Motion). Plaintiff did not appear for the meeting nor make additional contact with counsel to reschedule the meeting. Buyck Aff. ¶ 3. On April 25, 2018, counsel for Defendants served Plaintiff with discovery requests using the address Plaintiff provided the court. Buyck Aff. ¶ 4. Plaintiff has not responded to the discovery requests. Buyck Aff. ¶ 5. Plaintiff's deposition was noticed for June 11, 2018, but Plaintiff failed to appear. Buyck Aff. ¶ 6. Thereafter, Defendants filed a Motion to Compel (ECF No. 30) and the present Motion to Dismiss for Failure to Prosecute (ECF No. 31). As stated above, a Roseboro order was entered warning Plaintiff that a failure to respond to the motion to dismiss could result in dismissal of his complaint. Plaintiff failed to file a response. Thus, the court entered a second order allowing Plaintiff an additional ten days to file a response and warning him that failure to do so would result in a recommendation that the case be dismissed for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). Plaintiff has not filed a response.

         “The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders. Fed.R.Civ.P. 41(b).” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four considerations in determining whether Rule 41(b) dismissal is appropriate: (1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Id. at 70.

         Subsequently, however, the Fourth Circuit noted that “the four factors ... are not a rigid four-pronged test.” Ballard, 882 F.2d at 95. “Here, we think the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant. . . . In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse.” Id. at 95-96.

         In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that Plaintiff has failed to prosecute this case. Without Plaintiff's participation in the discovery process, Defendants are prejudiced because they are unable to form a proper defense to this action. Further, Plaintiff has failed to respond to a motion that specifically requests dismissal of his claims. As such, the undersigned concludes that Plaintiff has abandoned his claims against Defendants. No. other conclusion is reasonable.

         III. CONCLUSION

         For the reasons discussed above, it is recommended that Defendants' Motion to Dismiss (ECF No. 31) be granted and this ...


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